The opinion of the court was delivered by: Siragusa, District Judge.
This action was brought by the plaintiff, Richard Baker, who alleged
that he was unlawfully terminated from his position with the County of
Monroe's Environmental Services Division in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12102, and the New York Human
Rights Law, N.Y. Executive Law § 296. The case is before the Court on
the defendant's motion for summary judgment  filed on December 1,
1998. The plaintiff filed responding papers consisting of the plaintiff's
unsworn statement and a memorandum of law and the defendant filed a reply
memorandum. The case was argued before the Court on February 18, 1999.
For the reasons stated below, the defendant's motion is granted and the
case is dismissed.
The Local Rules of Civil Procedure require the moving party, here the
defendant, to file a statement of undisputed material facts with his
moving papers. The opposing party, here the plaintiff, is then required
to file a statement indicating which of the facts alleged by the moving
party are in error. In this case, the moving party has filed such a
statement, but the plaintiff has not contested any of those facts as
required by the local rules.
The plaintiff was hired by Monroe County as a laborer on November 20,
1979 and worked his way up the promotion ladder to become a Labor Foreman
I in the Department of Environmental Services on June 27, 1994. Baker
aff., at 1; Riley aff., at 1. He held that position until he was
terminated by the defendant on December 2, 1994. Def. Stmt. Undisp.
Facts, at 1. The plaintiff had suffered an injury to his back and was out
of work from February 9, 1993 until April 15, 1994. Def. Stmt. Undisp.
Facts, at 5. He had previously been out of work from March 19, 1991 until
April 3, 1991 for another injury and, in both cases, he received worker's
compensation. Prior to returning to work in April 1994, the defendant
advised the plaintiff it was scheduling a pre-termination hearing as
required by N.Y. Civil Service Law section 71. Def. Stmt. Undisp. Facts,
at 8. This law allows a County employee at least a one-year leave of
absence due to disability. The hearing took place on March 3, 1994 and a
decision was postponed to permit the plaintiff to be reexamined by his
doctor on April 7, 1994. In April, the plaintiff was cleared by his
doctor to return to work and, because of a restructuring in the
Environmental Services Department, the plaintiff was assigned to a
position in the supply room for a sewage treatment plant. He retained his
pay grade. The position was primarily indoor work, whereas his previous
position has been outdoor work. Def. Stmt. Undisp. Facts, at 9.
According to the defendant's representations, the plaintiff's work in
the supply room was less demanding than his outdoor field work as a Labor
Foreman I; however, on October 7, 1994, the plaintiff again suffered an
injury to his back in the same place he had injured it in 1991 and 1993.
Def. Stmt. Undisp. Facts, at 10. The County held another pre-separation
hearing*fn1. Another pre-separation hearing was held on November 21,
1994. The plaintiff's physician, William W. Cotanch, M.D., opined that
the plaintiff should remain out of work on total disability. Def. Stmt.
Undisp. Facts, at 10.
According to the defendant, the plaintiff was entitled to reinstatement
to his former position for a one-year period following his December 2,
1994 termination*fn2, "once he was certified able to return to work in
his former capacity as a Labor Foreman I." Def. Stmt. Undisp. Facts, at
11. The plaintiff applied for reinstatment on April 29, 1995 and enclosed
a note from Dr. Cotanch indicating he was restricted to lifting no more
than 40 pounds and could not perform repetitive bending. Richard Baker
letter of Apr. 29, 1995 to Terry Vittore (Riley aff., Exhibit C).
As a Labor Foreman I assigned to the sewer maintenance operation of the
Department of Environmental Services, the plaintiff was expected to be a
working foreman and assist his crew in their tasks, including heavy
manual labor. Id. During
oral argument, defense counsel pointed out that the job requires, "good
physical dexterity, ability to lift 0-100 [pounds], bend, reach, push,
pull, stand, good hand/eye coordination." See Essential Function
Analysis, "Is special expertise or ability required?" (Hetzer aff.,
Exhibit B). Although the plaintiff in his unsworn statement says, "[w]ith
respect to Mr. Graham's contention that a labor foreman was expected to
be able to lift up to 100 pounds, such is not a requirement in the job
specifications for a labor foreman . . .," he does not contend that he was
never required to lift weights between forty and 100 pounds.
While the plaintiff was out of work in 1993 and 1994, the sewer
maintenance operation was reorganized into three sewer maintenance
teams. Def. Stmt. Undisp. Facts, at 6-7. Whereas the plaintiff had been
in the cleaning group which performed only sewer cleaning, now the teams
were also tasked with the two other operations: construction and
technical services. Thus, a Department of Environmental Services employee
now had to have three sets of skills and perform three functions instead
of one. The requirements for manual labor, bending, pushing, pulling and
lifting up to 100 pounds did not change. Def. Stmt. Undisp. Facts, at 8.
Although the plaintiff's complaint shows that his cause of action is
for wrongful termination, at oral argument he stated that the basis for
his suit was wrongful refusal to reinstate him. In either case, the
defendant points out that at no time prior to his termination in December
of 1994 did the plaintiff request a reasonable accommodation. Def. Stmt.
Undisp. Facts, at 12.
Summary Judgment Standard
The law on summary judgment is well settled. Summary judgment may only
be granted if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
That is, the burden is on the moving party to demonstrate that the
evidence creates no genuine issue of material fact. Chipollini v. Spencer
Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987) (en banc). Where the non-moving
party will bear the burden of proof at trial, the party moving for summary
judgment may meet its burden by showing the "evidentiary materials of
record, if reduced to admissible evidence, would be insufficient to carry
the non-movant's burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 327 106 S.Ct. 2548, 2555 (1986). Once the moving party has
met its initial obligation, the opposing party must produce evidentiary
proof in admissible form sufficient to raise a material question of fact
to defeat a motion for summary judgment, or in the alternative,
demonstrate an acceptable excuse for its failure to meet this
requirement. Duplantis v. Shell Offshore, Inc., 948 F.2d 187 (5th Cir.
1991); Fed. R.Civ.P. 56(f). Once the moving party has met its burden,
mere conclusions or unsubstantiated allegations or assertions on the part
of the opposing party are insufficient to defeat a motion for summary
judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.
1986). The court, of course, must examine the facts in the light most
favorable to the party opposing' summary judgment, according the
non-moving party every inference which may be drawn from the facts
presented. Internationa1 Raw Materials, Ltd. v. Stauffer Chemical Co.,
898 F.2d 946 (3d Cir. 1990). However, the party opposing summary judgment
"may not create an issue of fact by submitting an affidavit in opposition
to a summary judgment motion that, by omission or addition, contradicts
the affiant's previous deposition testimony." Hayes v. New York City,
Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996). It is equally
well settled that in diversity actions, such as the one at bar, "federal
court, sits and operates as if it were a state court, and must apply
state substantiative law."
Smith v. Bell Sports, Inc., 934 F. Supp. 70 (W.D.N.Y. 1996).
Jurisdiction in this Court is predicated on the Americans with
Disabilities Act, 42 U.S.C. § 12117 and 28 U.S.C. § 1331 and 1343
with supplemental jurisdiction for the New York Human Rights law claim.
New York Human Rights Cause of Action
The Court will first address the state Human Rights claim. The
plaintiff concedes that he has never filed a notice of claim against the
County as required by New York law, but argues that the County had actual
notice in July of 1995 by virtue of its receipt of the Equal Employment
Opportunity Commission ("EEOC") complaint, well within the 90 days from
the May 1995. denial of ...